02/03/1992 (2)
.
.
CITY COMMISSION SPECIAL MEETING
Pick Kwik Conditional Use
February 3, 1992
The City Commission of the City of Clearwater met at City Hall with the following
members present:
Rita Garvey
Sue Berfie1d
Lee Regulski
William Nunamaker
Richard Fitzgerald
Also present were:
Michael J. Wright
M. A. Galbraith, Jr.
Cynthia E. Goudeau
Mayor/Commissioner
Vice-Mayor/Commissioner
Commissioner
Commissioner
Conmissioner
City Manager
City Attorney
City Clerk
The meeting was called to order at 1:59 p.m. for the purpose of discussing
a possible settlement regarding the Pick Kwik Conditional Use Permit.
The Planning and Zoning Board1s July 3D, 1991 decision to deny a
conditional use permit request to allow Pick Kwik to sell alcoholic beverages at
its store located on Mandalay Avenue on Clearwater Beach has b!en overturned by
an administrative hearing officer. The order by the hearing officer establishes
several conditions including a highly unusual condition linking the conditional
use permit for Pick Kwik to that of the 7-11 store directly across Mandalay
Avenue from the Pick Kwik location. ~
The City Attorney has expressed serious doubts about whether the condition
would be upheld under judicial review. The attorneys for Pick Kwik have
indicated a desire not to be governed by this condition and are therefore
awaiting final decision of an earlier conditional use permit which is still under
judicial review.
Because of the un like lihood of successfu lly challenging the hearing
officer's reversal of the Planning and Zoning Board1s decision, staff does not
recommend the Commission appeal the order. On the other hand, staff does not
feel comfortable accepting the hearing officer's conditions for approval due to
the legal uncertainties regarding the 7-11 store condition. Therefore, staff
recommends pursu i ng a sett 1 ement agl'eement with the app 1 i cant wh i ch wou 1 d
establish the conditional use for the property with certain conditions. These
conditions include: 1) The applicant shall provide a security guard to patrol
its three Clearwater Beach estab 1 i shments between the hours of 8: 00 p.m. and 2:00
a.m. on Friday and Saturday nights with monitoring reports submitted to the City
Planning and Development Department not less than quarterly; 2) The applicant
minccsp2.92
1
2/3/92
.
.
.
shall obtain the requisite alcoholic beverage separation distance variance from
the City Commission; 3) The applicant shall obtain the requisite occupational
license within six months of the date of the public hearing on the application;
and 4) The applicant shall restrict the hours of operation for alcoholic beverage
sales to 9:00 a.m. until 12:00 midnight Monday through Saturday and 1:00 p.m. to
12:00 midnight on Sunday. The agreement would pertain to the initial conditional
use permit which was denied by the Planning and Zoning Board and upheld on appeal
by the administrative hearing officer. This case is still under judicial review.
The appellant court recently sent this case back for trial and there is some
likelihood that the hearing officer's decision will be overturned.
Settling this first conditional use issue will allow the second conditional
use to be dispensed with. While staff is recommending the settlement agreement
approach f the Commission has several a lternat ives: 1) appeal the hearing
officer's decision granting the second conditional use; 2) continue judicial
review of the first conditional use permit in anticipation of similar conditions
being placed on the permit: 3) allow the applicant to proceed under the
conditions established for the second conditional use permit; or 4) proceed with
the settlement agreement as recommended by staff. .
The City Attorney reported the hearing officer has reconsidered the
condition regarding the 7-11 store and has removed it from his order.
In response to a questionf the City Attorney indicated should a settlement
be entered into, the separation distance variance would still have to come to the
City Commission for approval.
Concerns were expressed that if they approved the settlementf they would
have to approve the separation variance.
The Planning and Development Director indicated now that the hearing
officer has removed the condition regarding the 7-11 store across the street,
alternatives 1 and 2 would amount to the same. He felt that given the case, it
would be better to settle the issue and the decision regarding the separation
variance would still be with the City Commission.
It was indicated that one reason the hearing officer overturned the
Planning and Zoning Board's decision was that between the first and second
conditional use applicationsf there was a change in the police department's
recommendation and staff had recommended approval of the conditional use with
conditions.
In response to a question, the City Attorney indicated there had been a
change in Police district commanders between the first and second conditional use
applications. He stated the Commission did not have to vote today if they did
not wish to appeal and the applicant could come forward with the second
conditional use with the changed conditions. The separation distance would still
come to the City Commission for action.
Consensus of the Commission was to take no action at this time.
minccsp2.92
2/3/92
2
.
In response to a question regarding why staff was not recommending appeal
of the second conditional use, the City Attorney indicated it would be difficult
to appeal when staff had recommended approval with conditions. .
The meeting adjourned at 2:10 p.m.
~A- Oa..
"
, ,
. I I '.~.I' ~ :
,
"
,I
//
::,'"'
'.
, i
,;
, "
'\
, "
. -,
.'.,
" ..~
'\
: ': ~
. "
, , ,
'I
, :<
:=1-
, ":~'
~\ '-'
,I,
, . ':~~.
, '.
:,'.
' .
. )
, I ~~
':" ":.\~,
. .; ;,I!....:~~
, ,.,~\~.~
,'.'~
~ .,,:
"". ~
2/3/92
minccsp2.92
3